Religion and Marriage Equality Statutes

38 Pages Posted: 18 Mar 2015 Last revised: 5 May 2015

Nelson Tebbe

Cornell Law School

Date Written: March 16, 2015

Abstract

To date, every state statute that has extended marriage equality to gay and lesbian couples has included accommodations for actors who oppose such marriages on religious grounds. Debate over those accommodations has occurred mostly between, on the one hand, people who urge broader religion protections and, on the other hand, those who support the types of accommodations that typically have appeared in existing statutes. This article argues that the debate should be widened to include arguments that the existing accommodations are normatively and constitutionally problematic. Even states that presumptively are most friendly to LGBT citizens, as measured by their demonstrated willingness to enact marriage equality laws, have included provisions that may well retrench on civil rights principles in ways that are significant but underappreciated. Especially at a moment when marriage equality is moving into jurisdictions that are even more concerned with preserving religious freedom, arguments against existing accommodations should be made available.

Keywords: free exercise, same-sex marriage, equal protection, establishment clause

Suggested Citation

Tebbe, Nelson, Religion and Marriage Equality Statutes (March 16, 2015). Harvard Law & Policy Review, Vol. 9, p. 25, 2015; Brooklyn Law School, Legal Studies Paper No. 406. Available at SSRN: https://ssrn.com/abstract=2579337

Nelson Tebbe (Contact Author)

Cornell Law School ( email )

Myron Taylor Hall
Ithaca, NY 14853
United States
(607) 255-3506 (Phone)

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